Has the Third-Party Doctrine Overstayed Its Welcome?

On October 2, 2017, the Supreme Court of the United States began their 2017-2018 term, once again operating at full capacity with nine justices after the confirmation of Justice Neil Gorsuch earlier this year. The Court certainly needs all its strength as it sits down to a docket addressing freedom of religion, the definition of hacking, surveillance, and a litany of other current issues.

Once case in particular is considered by Arstechnica to be “perhaps the biggest privacy case to have reached the court in the Digital Age.” The case, Carpenter v. United States, considers whether a seizure and search sans warrant of historical cellphone records that pinpoint the movements and location of the device’s user over 127 days is permitted by the Fourth Amendment.

As of 2017, roughly three quarters of Americans own a Smartphone, and chances are a large majority of them carry the devices almost all the time. What few owners may realize, however, is that deep within a Smartphone’s many folders (for iPhone: Settings > Privacy > Location Services > System Services > Frequent Locations), there is a map that details all of the plot points the phone has been to, including dates, times, and the number of visits. It is here that any Smartphone owner can be confronted with a detailed account of their every move, likely spanning months or even years.

This data, which is collected when the phone pings a nearby cell tower, has to date been able to be obtained by United States authorities without a warrant. Timothy Carpenter, who was one of two men convicted of aiding and abetting a series of robberies, contended that a warrant for probable cause under the Fourth Amendment was necessary for authorities to obtain his cell-site location data. In a response filed at the end of September, the government argued that individuals have no right to privacy in regards to records created and kept by wireless carriers for business purposes. The government relied on the third-party doctrine, asserting that the Supreme Court has long held that third-party records containing non-content information about an individual are exempt from the Fourth Amendment’s protections against unreasonable searches and seizures. The third-party doctrine’s primary assertion is that a person has no legitimate expectation of privacy in information he “voluntarily” turns over to third parties.

Given the incredible advancements in digital communication and technology, how much should it really matter what the Supreme Court has long held? The Carpenter case deals with a level of technology far beyond the standard landline telephone. The third-party doctrine has increasingly waning relevance to modern notions of privacy, and the government’s reliance on it in this case seems tenuous at best. Over a dozen state Supreme Courts have rejected the doctrine, and the U.S. Supreme Court has never actually articulated a direct endorsement of it or a clear argument in its favor. Adhering to any precedent arguably in support of the doctrine becomes increasingly difficult given the doctrine’s practical implications in a modern society that shares virtually all facets of life with various entities. Justice Sonia Sotomayor has even declared that the third-party doctrine is “ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks,” rendering certain disclosures more essential than voluntary.

Since it is arguably necessary to relinquish a certain amount of personal information in order to participate in society, the forced “voluntariness” of disclosure to cell phone providers triggers an automatic imposition of the third-party doctrine on almost everyone.

That is so problematic given the doctrine’s complete lack of regard for degrees of privacy, since the doctrine equates exposure to a limited group with exposure to the world.

In deciding Carpenter v. United States during the current term, the Supreme Court should not shackle itself to outdated threads of precedent. A close eye should be kept on the potential for increasing pervasiveness of government monitoring as a result of developing technology. In a world where nearly everyone’s actions, thoughts, and whereabouts are already capable of being contained in a pocket-sized entity, there is no time to shy away from establishing new precedent. The Fourth Amendment must be tailored to the digital age, and that inevitably involves reconsideration of the third-party doctrine and its relevance in today’s digital world.